14.1 The ALRC recognises the good work undertaken by police officers on a daily basis, often in difficult and dangerous circumstances. The ALRC also recognises that Commonwealth, state and territory police have undertaken significant reforms to culture, policy and practice in recent years to improve relationships with Aboriginal and Torres Strait Islander peoples, examples of which are provided in this chapter.
14.2 Notwithstanding those measures, throughout this Inquiry, the ALRC heard that many Aboriginal and Torres Strait Islander people continue to have negative attitudes towards police, with the view that the law is applied unfairly and that complaints about police practices are not taken seriously. It is clear that those perceptions have strong historical antecedents (see Chapter 2) and that there is evidence that the law is applied unequally—for example Aboriginal and Torres Strait Islander young people are less likely to be cautioned and more likely to be charged than non-Indigenous young people.
14.3 The perception of poor police practices needs to be addressed in order to improve relationships between police and Aboriginal and Torres Strait Islander peoples. In the context of broader community relations, this is acknowledged by police.[1]
14.4 Poor relations influence how often Aboriginal and Torres Strait Islander people interact with police and how they respond in interactions with police. Poor police relations can contribute to disproportionate arrest, police custody and incarceration rates in relation to Aboriginal and Torres Strait Islander peoples. It may also undermine police investigations.[2]
14.5 The ALRC recommends that police practices and procedures—particularly the exercise of police discretion—are reviewed by governments so that the law is applied equally and without discrimination with respect to Aboriginal and Torres Strait Islander peoples. The ALRC also recommends that police complaints handling mechanisms be reviewed, particularly addressing the perception by Aboriginal and Torres Strait Islander people that their complaints are not taken seriously and that police misconduct is not addressed. Mechanisms for independent assessment or review of complaints should be considered.
14.6 The implementation of these two recommendations will require further consultation with Commonwealth, state and territory police and Aboriginal and Torres Strait Islander peoples to ensure that the balance is struck between efficient policing with strong internal management structures and the need for rigorous reviews to ensure that police practices and procedures are applied equally and investigation of complaints about police misconduct are, and are seen to be, thorough, transparent and fair.
14.7 The ALRC also recommends strengthening custody notification services (CNS) that provide 24-hour, 7-day a week telephone legal advice services to Aboriginal and Torres Strait Islander people who have been detained in police custody. A CNS provides an opportunity to conduct welfare checks; and to provide culturally sensitive legal advice to Aboriginal and Torres Strait Islander people. The ALRC recommends that a requirement to notify an Aboriginal and Torres Strait Islander legal or equivalent service be provided for in statute and that it extend to detention in custody for any reason—including for protective reasons.
14.8 The ALRC recognises the importance of police culture and recommends a range of initiatives that could be implemented to improve police culture. In particular, successful initiatives need to be acknowledged and, where possible, scaled up.
14.9 Each state and territory, and the Commonwealth, has its own police service operating under state and territory and federal legislation.[3] In the Australian Capital Territory (ACT), policing is carried out by the Australian Federal Police.[4] In each jurisdiction policing covers four broad areas:
· Community safety – Preserving public order and promoting a safer community
· Crime – investigating crime and identifying and apprehending offenders
· Road safety – targeted operations to reduce the incidence of traffic offences and through attendance at, and investigation of, road traffic collisions and incidents
· Judicial services – support to the judicial process including the provision of safe custody for alleged offenders[5]
14.10 As explained by Victoria Police:
The fundamental purpose of policing is the protection and vindication of the human rights of every citizen.
Equally, police must protect human rights in the exercise of their duty; every interaction between a sworn officer and a member of the public conveys strong signals about whether that person is treated with respect and dignity.[6]
14.11 Effective policing in Australia relies on the principle of policing with the consent of the public.[7] In 2015–2016, 75% of Australians were satisfied or very satisfied with police, rising to 85% of people who were satisfied or very satisfied with the service they received during their most recent contact with police.[8] Unfortunately this survey did not provide figures in relation to Aboriginal and Torres Strait Islander peoples. However, evidence from a range of sources suggests that Aboriginal and Torres Strait Islander people continue to have less positive attitudes to police.[9]
14.12 In describing the relationship between police and Aboriginal and Torres Strait Islander communities, the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) noted:
There is absolutely no doubt in my mind that the antipathy
which so many Aboriginal people have towards police is based not just on
historical conduct but upon the contemporary experience of contact with many
police officers ...
The challenge for police departments is to accept that there is a basis for
Aboriginal resentment and suspicion about police conduct and to consider the
Aboriginal perspective when devising policing strategies.[10]
14.13 Much has changed since the RCIADIC. For example, The Royal Commission into the Protection and Detention of Children in the Northern Territory highlights a number of examples of positive interactions between police and communities in the Northern Territory (NT).[11] However, issues continue to remain, particularly in relation to what has been described as over-policing of public order and criminal infringement offences, ‘proactive’ policing in relation to bail and residential checks, and under-policing of family violence when Aboriginal and Torres Strait Islander people, particularly women, are the victim.
14.14 The Public Interest Advocacy Centre (PIAC) has noted that over-policing:
has also continued to cement the precarious relationship between Aboriginal young people and adults with the police officers in their communities. Aboriginal Australians report a high level of discrimination across a range of settings, with one of the highest occurrences being when interacting with police, security people, lawyers or in a court of law. The very perception of discrimination has an impact on Aboriginal and Torres Strait Islander people's well being; research has shown that just a perception can lead to changes in job seeking behaviour or dropping out of the work force. Discrimination can also be linked to negative health outcomes.[12]
14.15 The role of the police, and the criminal justice system more broadly, in contributing to the over-incarceration of Aboriginal and Torres Strait Islander peoples was explained by the Honourable Wayne Martin AC, Chief Justice of Western Australia:
Over-representation amongst those who commit crime is, however, plainly not the entire cause of over-representation of Aboriginal people. The system itself must take part of the blame. Aboriginal people are much more likely to be questioned by police than non-Aboriginal people. When questioned they are more likely to be arrested than proceeded against by summons. If they are arrested, Aboriginal people are much more likely to be remanded in custody than given bail. Aboriginal people are much more likely to plead guilty than go to trial, and if they go to trial, they are much more likely to be convicted. If Aboriginal people are convicted, they are much more likely to be imprisoned than non-Aboriginal people, and at the end of their term of imprisonment they are much less likely to get parole than non-Aboriginal people.[13]
14.16 A key issue identified by the Honourable Wayne Martin AC, was the initial decision by police to arrest. In this regard, the Human Rights Law Centre and Change the Record Coalition have pointed out the role that police discretion plays in determining incarceration rates:
ATSILS [Aboriginal and Torres Strait Islander Legal Services] have consistently pointed to a bias in the exercise of police discretion against diverting or cautioning Aboriginal and Torres Strait Islander people, particularly young people. Research in several jurisdictions has supported this view. There is evidence also that Aboriginal and Torres Strait Islander women are more likely to be arrested and charged with an offence compared to non-Indigenous women.[14]
14.17 The Victorian Equal Opportunity and Human Rights Commission has noted the significant power that individual police have in exercising their discretion:
Victoria Police officers have significant discretionary powers and play an important role as the entry point to the justice system. Every decision made (such as whether to investigate, question, search, arrest, caution, charge and prosecute) involves an element of discretion on the part of the officer ... Given the scope and significance of police powers, and the harm that can be caused if decision-making is not undertaken with people’s rights being fully considered, discretion should be exercised appropriately.[15]
14.18 The link between police discretion and incarceration rates of Aboriginal and Torres Strait Islander peoples has been acknowledged previously in the Aboriginal Strategic Direction 2007–2010. That direction focused on the need to use discretion as an alternative to arrest in order to ‘[r]educe offending and over-representation of Aboriginal people in the criminal justice system.’[16]
14.19 Throughout this Inquiry, a number of stakeholders informed the ALRC that police practices and policies contribute to the over-incarceration of Aboriginal and Torres Strait Islander peoples.[17] In order to address over-incarceration, and provide for the equal application of the law, the ALRC recommends that governments specifically review police procedures and practices both in their design and implementation. Those reviews should consider the factors outlined above and involve a broad range of stakeholders including Aboriginal and Torres Strait Islander peoples.
14.20 This section highlights some aspects of police procedure and practice that warrant particular attention including the application of police discretion and any evidence of over charging by police.
14.21 Police discretion is an important and necessary feature of our criminal justice system. When a police officer suspects that a person has committed an offence they will exercise judgement (or discretion) as to how best to proceed. The officer will ‘consider not only the illegality of the offense but also contextual and mitigating factors.’[18] A key feature of policing in Australia is premised on the principle that ‘[s]trict adherence to the letter of the law in many cases would be too harsh and justice may be better served by not introducing an offender into the criminal justice process.’[19] That is, a police officer may elect not to proceed in response to a minor offence or may choose to otherwise divert the offender.
14.22 In other circumstances, the exercise of discretion relates to decisions about how to initiate a criminal justice response. There are two ways to charge a person: by way of a physical arrest (with or without a warrant) and taking into custody or by issuing a summons or attendance notice to attend court at a later date. Arrest is typically seen as an option of last resort, as it involves at least a temporary loss of liberty.[20] It may be necessary, however, to protect community safety or to preserve evidence. Police discretion is regulated not just by laws and regulations but by policing manuals and instructions, as well as by directions from a more senior officer in certain circumstances.
14.23 Police discretion can work in favour of, or against, a person suspected of criminal conduct. A key focus of this recommendation is a review of inappropriate uses of police discretion and how best to ensure police policies and practices support the appropriate exercise of police discretion.
14.24 As set out in Chapter 3, Aboriginal and Torres Strait Islander people are seven times more likely than non-Indigenous people to be charged with a criminal offence and appear before the courts. In addition to the statistical overview provided in that chapter, specific research has focused on the rates of police cautioning for young people. This research suggests that Aboriginal and Torres Strait Islander young people are more likely to be arrested than their non-Indigenous counterparts even after other factors such as the offence, offending history and background factors are taken into account. For example:
· Crime Statistics Agency Victoria (CSAV) found that from July 2016 to June 2017, Aboriginal and Torres Strait Islander people were 10% more likely to be arrested following an alleged offender incident, were less likely to be cautioned, and were also less likely to receive a summons or intent to summons than a non-Indigenous alleged offender.[21]
· In 2008, the Australian Institute of Criminology (AIC) examined differences in juvenile diversionary rates for Aboriginal and Torres Strait Islander and non-Indigenous offenders in New South Wales (NSW), South Australia (SA) and Western Australia (WA). It found that Aboriginal and Torres Strait Islander offenders were more likely to be referred to a court than non-Indigenous offenders whereas non-Indigenous offenders in all three states were significantly more likely to receive a police caution. [22]
14.25 Similar findings have been made by the Crime and Misconduct Commission in Queensland,[23] the NSW Bureau of Crime Statistics and Research (NSW BOCSAR),[24] and the Office of Police Integrity Victoria.[25]
14.26 Redfern Legal Centre (RLC) submitted the following case study on the use of police discretion to arrest:
Case Study: Melissa - part 1
Melissa had been celebrating a friend's birthday with a group of teenagers outside a McDonald's restaurant. Several of the young people were intoxicated. Melissa's friend was arrested for swearing at police. After Melissa tried to assist her friend by wrapping her arms around her, Melissa was arrested and charged with resisting and hindering police. The Constable who arrested Melissa tackled her to the ground, put her in a headlock, dragged her towards the back of a paddywagon, dropping her on the ground where Melissa hit her head and became unconscious. The Magistrate who dismissed the charges against Melissa found that police used “an inordinate amount of force.”[26]
14.27 Legal Aid NSW submitted the following case study in relation to police discretion in enforcing bail regimes:
Case Study: Donna
Legal Aid NSW received an inquiry from a worker at a support service whose client, Donna, was an Aboriginal woman whose bail condition required her to live at a particular address. Donna was experiencing domestic violence at this address and spoke to police about her intention to live elsewhere. The police officer she spoke to said she would be arrested if she breached her residence condition.[27]
14.28 Consistent with these cases studies, a number of stakeholders suggested that police discretion continues to be exercised inappropriately in regards to Aboriginal and Torres Strait Islander peoples. The Aboriginal Legal Service NSW/ACT (ALS NSW/ACT) submitted that their community consultations showed that:
The majority of participants considered there to be very little or nothing working well between the police and their community ... A number of participants suggested that institutional racism has become a feature of policing in NSW. These participants noted that police offer very little discretion when dealing with Aboriginal people, and that many communities in regional and remote NSW communities suffer from over policing.[28]
14.29 RLC submitted that the use of police discretion in relation to arrest was particularly important in order to ensure arrest remains a genuine ‘last resort’:
It is well established that in the common law, arrest is for the purpose of commencing proceedings against a person and is an action of last resort. In RLC's experience arrest is routinely used against Aboriginal and Torres Strait Islander people as a first resort rather than utilising the range of alternatives available to police such as a Court Attendance Notice (CAN), warning or caution. These alternatives are outlined in legislation and guidance manuals for police. It is clear that meaningful action is required to ensure police arrest practices change. The support of police leadership across Australian police agencies to foster an understanding of and commitment to the principle of arrest as a last resort is needed.[29]
14.30 In order to facilitate a decreased reliance on arrest, RLC suggested that NSW introduce a legislative reform so that ‘police are mandated in legislation to explicitly use arrest as a last resort when dealing with Aboriginal and Torres Strait Islander people. Police policy and training alone are insufficient.’[30]
14.31 Caxton Legal Centre submitted that police should be required to report on their use of discretion in relation to Aboriginal and Torres Strait Islander people:
Whilst the reporting of engagement strategies may create positive impetus for their use, our view is that such reporting should also include full coverage of areas where police have discretionary powers including on the use of criminal infringement notices and the issuing of move on directions. Implementing such changes would shed light on how the use of discretionary police powers impacts on the involvement of Aboriginal and Torres Strait Islander individuals and the criminal justice system ... It is hoped that by making such records public police would be deterred from having too many Indigenous entries on the record [31]
14.32 Another relevant aspect of policing practice concerns how local police commands prioritise resources to tackle crime. In NSW for example, the Suspect Target Management Plan (STMP) has been implemented. STMP is ‘a strategy to encourage local commands to target serious or repeat offenders across NSW’.[32] It is premised on the belief that ‘targeting of recidivist behaviour is possibly the most efficient method of reducing crime’[33] Under STMP high risk suspects are subject to surveillance, monitoring, and strict enforcement of all requirements under any non-custodial order the person may be subject to (such as reporting for bail)—even where these requirements are ostensibly unrelated to reoffending.[34]
14.33 There is some evidence that STMP also targets Aboriginal and Torres Strait Islander people with previous offending histories, particularly those subject to non-custodial orders, for frequent compliance checks—resulting in higher rates of breach and imprisonment, often for minor or ‘technical’ breaches.[35]
14.34 Stakeholders to this Inquiry suggested that more proactive policing of bail conditions, particularly focused on technical breaches (rather than reoffending), is contributing to over-incarceration of Aboriginal and Torres Strait Islander peoples. RLC provided the following case study to this Inquiry:
Case Study: Toby, part 1
At the age of 15 Toby was on bail for charges of break and enter, larceny and goods in custody. Police deemed Toby a 'high-risk offender' and closely monitored his movements. In a period of four and a half months, Toby was subject to 155 bail checks. Police attended Toby's home frequently and often after midnight, even when Toby was no longer subject to a curfew. On one occasion, Toby reported that Police attended the family home four times in a single night.[36]
14.35 The ALRC recognises the importance of complying with conditions of bail. This was explained by Howie JA:
[I]f offenders do not treat the obligations imposed upon them by the bond seriously and if courts are not rigorous in revoking the bond upon breach in the usual case, both offenders and the public in general will treat them as being nothing more than a legal fiction designed to allow an offender to escape the punishment that he or she rightly deserved.[37]
14.36 However, the focus of policing appears to be on technical rather than substantive breaches of bail conditions. PIAC explained that its clients were
being detained for ‘technical breaches’ of bail, a term which refers to the circumstances where a person is arrested for breach of a bail condition which in itself is not a new offence, and does not harm the young person, another person or the community. Examples of technical breaches including being five minutes late for curfew or being with a different family member other than the person specified in the bail condition. PIAC’s clients are frequently reporting a level of policing of their bail conditions that is out of step with the severity of the alleged offence, such as incessant checking of curfews throughout the night several nights per week. Excessive monitoring of bail conditions was also reported to the AIC, which found [in 2013] an Australia-wide practice of ‘overzealous policing of young people’s bail compliance and in some cases, a ‘zero tolerance’ approach to bail breaches’.[38]
14.37 This is consistent with research by NSW BOCSAR which found that in 2015 the remand population was ‘much higher... than it was prior to the introduction of the NSW Bail Act (2013)’—and that the key driver of this growth was likely more proactive policing practices, not legislative amendment.[39]
14.38 A review of police practices should consider whether further guidelines or instructions on charging Aboriginal and Torres Strait Islander peoples should be developed and implemented.
14.39 Charging decisions are made by police based on whether the evidence obtained during an investigation has a reasonable prospect of sustaining a conviction.[40] Where the charges relate to more serious or indictable offences, the Director of Public Prosecutions of that state or territory will, at various stages in the criminal justice process, provide advice to police on, and make decisions regarding, the appropriate charges to prosecute.[41] This may result in charges being withdrawn, downgraded or added. A defendant may also seek to ‘charge bargain’—to have charges withdrawn in exchange for a guilty plea to a lesser charge.[42]
14.40 The initial decision by police to charge can be made in fluid circumstances. Not all the evidence may have been obtained and decisions to charge may be made in the context of ensuring public safety. As the NSW Law Reform Commission explained: ‘The charge can be informed by evidence that may be changing and events that may still be underway.’[43]
14.41 Nonetheless, charging practices can impact on the likelihood of an inappropriate guilty plea, the likelihood of bail refusal, and ultimately the likelihood of the accused receiving a term of imprisonment. Charging decisions interact with criminal justice systems which are designed to encourage and reward early guilty pleas with sentence discounts to save considerable public resources.[44] It is in this context that ‘charge bargaining’ between prosecution and defence can occur pre-trial.
14.42 During the consultation process, the ALRC heard that police charging practices can result in an Aboriginal and Torres Strait Islander person being charged with multiple offences in relation to one incident or being charged too high for an offence, or both (so called ‘over charging’). However, a decision to withdraw charges may not necessarily mean that the initial charge decision was incorrect; it can simply mean that new evidence has come to light or a review by the Director of Public Prosecutions in indictable matters has meant that charges have changed.
14.43 The NT Royal Commission into youth justice also identified charging practices as contributing to youth incarceration: ‘Northern Territory Police over charge children and young people with offences. The extent to which this occurs could not be determined.’[45]
14.44 Examples of overcharging in that report include:
A Supervising Summary Prosecutor from the DPP told the Commission of one example where a young person was charged with 169 offences arising out of one incident. The prosecution later proceeded on only 27 charges to which the young person pleaded guilty.
The Commission was also told in the Judges’ Roundtable Royal Commission into the Protection and Detention of Children in the Northern Territory that a child or young person may initially face, for example, in excess of 70 charges, later reduced to fewer than five.[46]
14.45 Further:
It was noted at the Judges’ Roundtable that children and young people may remain in detention for an extended period while the charges that should not have been laid are considered by the prosecution and withdrawn.[47]
14.46 The adverse outcomes attached to overcharging may be magnified for Aboriginal and Torres Strait Islander peoples who may be more likely than non-Indigenous people to:
· have other vulnerabilities, such as cognitive impairment or mental illness;
· have language barriers and other communication barriers;
· have a criminal record; and
· be bail refused, particularly on the grounds of homeless.[48]
14.47 The initial charge needs to, as much as possible, reflect the actual criminal conduct for which a person is accused. The practice of over charging followed by negotiation to lessen the charges, or the number of charges, can be disadvantageous for Aboriginal and Torres Strait Islander accused. A review of police practices should focus on ways to improve the accuracy of charging decisions.
Recommendation 14–2 To provide Aboriginal and Torres Strait Islander people and communities with greater confidence in the integrity of police complaints handling processes, Commonwealth, state and territory governments should review their police complaints handling mechanisms to ensure greater practical independence, accountability and transparency of investigations.
14.48 The ALRC recognises that a number of jurisdictions have recently reviewed or amended their complaints handling mechanisms, including most recently in SA and NSW.[49] There is also currently a Parliamentary Inquiry into the Independent Broad-Based Anti-Corruption Commission (IBAC) in Victoria.[50]
14.49 Notwithstanding these improvements, the ALRC considers that the particular concerns raised by Aboriginal and Torres Strait Islander people throughout this Inquiry suggests that further reforms to police complaint handling is required. Those concerns have previously been explained by the Victorian Aboriginal Legal Service in the following terms:
Low substantiation rates [of complaints] and poor communication with complainants, combined with concerns about lack of independence where police are investigating complaints against police, continue to undermine community confidence in the complaints process. This in turn leads to lower rates of complaints, which means that police are not being held to account for their actions, and there is less opportunity for Victoria Police to learn from its mistakes and improve its relationship with Aboriginal and Torres Strait Islander communities into the future.[51]
14.50 The ALRC recommends a review in each jurisdiction of police complaints handling mechanisms. This review must specifically focus on how to improve the perception held by Aboriginal and Torres Strait Islander people regarding police accountability for misconduct. The review should also address concerns that when Aboriginal and Torres Strait Islander people complain about police conduct those complaints are not properly addressed and investigated. Finally, the review should address specific concerns by Aboriginal and Torres Strait Islander people that when they are the victims of crime that crime is not properly investigated.
14.51 In 1996, the ALRC considered police accountability mechanisms and specifically considered a model for complaints mechanisms for the Australian Federal Police (AFP) and the then National Crime Authority (NCA). The ALRC noted that:
Complaints and disciplinary systems are to give support to the overall objectives of law enforcement agencies, namely that there is effective and efficient law enforcement and that law enforcement powers are exercised according to law. Law enforcement agencies should be professional, effectively managed, vigilant against corruption and misconduct and publicly accountable. Powers should be exercised with respect for human rights and with regard to the appropriate balance between civil liberties and effective law enforcement. Complaints and discipline are integral parts of law enforcement accountability. They are as essential to the notion of ‘good’ policing as they are to preventing police malpractice and abuse of authority.[52]
14.52 In that Inquiry, the ALRC explained that, in crafting its recommendations, it sought ‘an appropriate mix between internal and external responsibilities in both the AFP and NCA complaints and disciplinary systems.’[53] That balance was intended to maintain appropriate managerial responsibility while ensuring that, where appropriate, complaints and disciplinary systems had sufficient independence to be rigorous and fair. A key principle of the ALRC’s Inquiry was designing a complaints mechanism that provided for both public confidence in the mechanism itself and the agencies more broadly.[54]
14.53 Effective and accessible police complaints handling mechanisms increase police accountability in a number of ways by providing:
· scrutiny of police conduct and powers;
· a sense of being heard for people who experience police conduct they perceive as inappropriate, unfair or unlawful; and
· consequences for inappropriate or unlawful police conduct.[55]
14.54 In addition, police complaint handling mechanisms provide an avenue for the review and reform of systemic failures and biases in policing practices—including those relating to the use of powers to detain, search, arrest, use force, enter private premises and seize property.[56] On this point, the Police Accountability Project—a project of the Victorian Flemington & Kensington Community Legal Centre—noted:
Police are granted powers by the state and it is the state’s responsibility to ensure that these powers are not abused. Police must be fully accountable for their every action when interacting with citizens.
The use of force, or the use of coercive and invasive powers, are a routine part of a police member’s job. Police are provided with weapons including guns, Tasers, OC (pepper) spray and batons. Police arrest, detain, stop, question and search people, their cars and homes, all of which impacts on fundamental human rights and freedoms.
... Complaints are an opportunity for positive reform. Most people who spend the time and effort it takes to make a formal complaint provide a benefit to the community. Complaints from the public allow the detection, investigation, disciplining and prosecuting of police members who have engaged in misconduct. When a person takes the time and effort to lodge a formal complaint, they create an opportunity for the reform of systemic failures in police practices.[57]
14.55 Generally, research on police accountability differentiates between ‘oversight’ mechanisms which involve an external agency or body reviewing and potentially investigating police complaints, and internal mechanisms within a police service for addressing complaints and investigating misconduct which maintain institutional and management authority.[58] As set out in Table 14.1, most jurisdictions in Australia have a mix of both internal and external mechanisms for dealing with complaints.
Table 14.1 Police complaints handling bodies in Australia
|
Jurisdiction |
Internal Management |
Primary Oversight |
|
ACT[59] |
Commonwealth Ombudsman and the Australian Commission for Law Enforcement Integrity which focuses on serious and systemic corruption |
|
|
NSW[60] |
Police Standards Command—Primarily managed by the relevant local police station |
Law Enforcement Conduct Commission—focused on serious misconduct or serious maladministration |
|
NT[61] |
Police Standards Command |
Ombudsman NT |
|
Qld[62] |
Ethical Standards Command |
Crime and Corruption Commission—deals with corrupt conduct and police misconduct. Does not deal with customer service and minor breaches of conduct |
|
SA[63] |
Internal Investigations Section |
Office for Public Integrity, Independent Commissioner Against Corruption (for issues of corruption or serious or systemic misconduct or maladministration) |
|
Tas[64] |
Professional Standards |
Ombudsman Tasmania and Integrity Commission which deals with complaints about misconduct by police officers |
|
Vic[65] |
Professional Standards Command |
Independent Broad-Based Anti-Corruption Commission—serious corruption and police misconduct |
|
WA[66] |
Professional Standards |
Corruption and Crime Commission deals with serious misconduct (which includes all police misconduct) |
14.56 The RCIADIC identified that a lack of police accountability undermines the relationship between Aboriginal and Torres Strait Islander peoples, communities and the police.[67] While in the intervening 26 years the police have undertaken work to improve relationships with Aboriginal and Torres Strait Islander peoples and communities, a perception of lack of accountability for wrong doing continues to undermine confidence and trust in police.[68] The RCIADIC recommendation on police complaints set out the key principles that should guide the design and implementation of police complaints mechanisms, rather than providing a specific model.[69] Key features of the RCIADIC report remain relevant today including:
· the need for investigation into police conduct to be independent of police;
· that there be transparency throughout the investigation; and
· the need for formal support for complainants, including legal assistance.[70]
14.57 The RLC provided a number of case studies that it suggested highlight the inadequacy of existing complaints mechanisms:
Case Study: Andrew part 3
RLC submitted a formal complaint on behalf of Andrew requesting that the officer involved in multiple stop/search incidents be the subject of non-reviewable action per Sch 1 of the Police Act 1990 (NSW), in order to remedy the issues in his understanding of proper police practice and allow him to effectively contribute to community policing. The LAC [Local Area Command] investigated the complaint but determined that the evidence did not sustain any of the behaviour complained of.
Case Study: Bill
Bill was arrested by police in respect of multiple criminal offences. During his arrest, police used excessive force in restraining him which was captured on in-car-video. Bill didn't raise the excessive force in his criminal proceedings as it was not relevant to the substantive charges. After his criminal proceedings were finalised, Bill made a complaint about the excessive force used by police during his arrest. Despite there being independent evidence of excessive force, police declined to investigate on the basis that Bill had "an alternate means of redress", being his criminal proceedings.
Case Study: Melissa part 2
Following the Magistrate's findings in relation to the conduct of police, NSW Police conducted an internal investigation. NSW Police agreed with the Magistrate's finding and recommended retraining in restraint techniques for the officer involved. RLC made a complaint on behalf of Melissa's mother raising further issues that were not considered in the internal investigation such as the decision by police to bring charges against Melissa, the delay in bringing those charges and problems with the evidence given. NSW Police took more than 19 months to release their decision. Although some of the other issues were acknowledged, NSW Police failed to respond to all of the issues raised and no further disciplinary action was recommended. [71]
14.58 Aboriginal Legal Service Western Australia (ALSWA) submitted a number of case studies including:
Case Example Y
ALSWA represented Y, a 14-year-old Aboriginal boy from a remote town in relation to a complaint about how the police treated him. Y and a number of his cousins went for a ride in their aunt's car. Y was a passenger and the driver did not hold a licence. A police car started following them. The driver kept driving. The driver then panicked and veered off the road to try to go onto a back, dirt road but the car became stuck in a ditch. The boys all got out of the car and started running.
The police officers caught Y and two others. Y instructed ALSWA that the officers told them to ‘Get down’. He got down and he could feel the officer aiming a gun on the back of his neck. The male officer then said ‘Stop crawling away or I’ll shoot you with the gun’. Another boy heard the officers say ‘Shut up motherfuckers. Get on the ground motherfuckers. Hey don’t move or we’ll shoot you with the gun. Shut up—you want to die?’
This boy said the police officers tackled him to the ground and hit him in the face and ribs. They then kicked him in the ribs. They also hit him on the leg with a baton.
ALSWA submitted a complaint about this conduct to the Western Australia Police Internal Affairs Unit who subsequently performed an investigation. The Western Australia Police interviewed Y and one other boy on one occasion; however, other boys were not interviewed due to difficulties in attending the remote locations. ALSWA is of the view that this client’s complaint was adversely affected by his and his cousins’ remoteness and the difficulties he had with engaging with police officers.
The Western Australian Police investigation “established insufficient evidence to sustain any criminal conduct on the part of any police officer or any breaches of Western Australia Police policy.”
This response is the standard response that ALSWA receives to the majority of its serious complaint … It is clear that police investigating police is neither effective nor procedurally fair. Invariably, if ALSWA makes a complaint to the Western Australian Corruption and Crime Commission (CCC) about police conduct, the CCC refers the complaint back to Western Australia Police internal investigations. ALSWA has requested in some cases for the CCC to conduct its own independent investigation; however, the typical response is that the CCC has ‘refocussed its efforts’ and now oversees fewer investigations.[72]
14.59 These case studies are consistent with a number of submissions to this Inquiry that expressed the view that current police complaints handling mechanisms are inadequate because of:
· a perceived lack of impartiality of the police complaints processes;
· low substantiation rates when complaints are made;
· police being able to influence complaint processes;
· undue or arbitrary time limits for the making of complaints;
· powers given to independent police complaints bodies being too narrow; and
· independent police complaints bodies too frequently referring complaints back to police instead of conducting an external review.[73]
14.60 A key concern raised in relation to police complaints during this Inquiry was a lack of independence, that is, the involvement of the police in reviewing and investigating a complaint about police. As noted by the Independent Commissioner Against Corruption South Australia (ICAC SA): ‘Historically, police forces have been in charge of handling complaints about police. There are many recorded instances in other jurisdictions of inadequate investigations and even intimidation of those who wish to lodge a complaint.’[74]
14.61 It has been argued argues that true independence cannot be satisfied by the system utilised in all Australian jurisdictions of internal investigations by police which are supervised or reviewed by an independent authority.[75] A number of submissions supported this view. National Aboriginal and Torres Strait Islander Legal Service (NATSILS) argued:
Current practices of allowing other police officers from the same agency to investigate claims is insufficient, as it leads to obvious biases and inadequate outcomes for Aboriginal and Torres Strait Islander people bringing complaints. Currently there is no system for independent and impartial investigations in Australia, meaning that mistreatment of Aboriginal and Torres Strait Islander people in the criminal justice system is not properly addressed.[76]
14.62 Aboriginal Peak Organisations NT (APO NT) submitted that there needs to be a process ‘established for investigation and complaints of Police that is independent of Police and autonomous and has the necessary powers to perform its functions. Aboriginal people must be involved in this structure, including in key and leading roles.’[77]
14.63 Kingsford Legal Centre (KLC) identified a lack of independent police complaint mechanism in NSW for less serious complaints as disproportionately impacting on Aboriginal and Torres Strait Islander peoples:
In NSW, less serious police complaints are dealt with internally, by the Local Area Command which conducts the investigation and is monitored by the Police Commissioner's staff. The lack of an independent investigation means that less serious complaints have the potential to not be adequately dealt with, with investigations often finding that the complaint is not sustained. If a complainant wants to view information held by police in relation to the complaint, they are often required to make an application under the Government Information (Public Access) Act 2009 (NSW) and this can be a very time-consuming process. It is imperative that the current mechanisms in place for the investigation of police complaints be reviewed and undergo reform to ensure due process, efficiency and effective remedies.[78]
14.64 North Australian Aboriginal Justice Agency (NAAJA) identified a number of issues with the Ombudsman Act (NT), which provides the ‘main formal mechanism’ to bring complaints against police in the NT. The Act sets out a three-tiered process for the way a police complaint is to be handled, based on a triage process,[79] which provides ‘who should investigate a complaint and the processes and level of formality which is to be applied to the investigation’.[80] NAAJA raised concerns that complaints were not being categorised appropriately at the initial assessment stage and as a result certain complaints were not investigated appropriately and with sufficient independence.[81]
14.65 Many of the issues raised above in relation to complaints against police are relevant in the context of any death in police custody. The Human Rights Law Centre submitted that: ‘Relations between Aboriginal and Torres Strait Islander people and police could be improved if allegations of police misconduct and deaths in custody were independently investigated.’[82]
14.66 In 2014–15 there were a total of 11 deaths in police custody.[83] Five of those deaths were Aboriginal and Torres Strait Islander people.[84] The most recent figures from the AIC suggest that most deaths in custody are due to natural causes. Unlawful homicides are a small proportion of deaths in custody.[85] Fortunately, in Australia, deaths in custody are not common. Nevertheless, the circumstances of those deaths and how they are investigated are critical for maintaining public confidence in police, particularly among Aboriginal and Torres Strait Islander peoples. The then Office of Police Integrity in Victoria explained that: ‘It is important that the investigation of a death associated with police contact is conducted in such a way as to give the public confidence that the circumstances surrounding the death will be subject to the highest levels of scrutiny.’[86]
14.67 The RCIADIC made a total of 35 recommendations for the reform of custody investigations and coronial inquiries in the event of an Aboriginal and Torres Strait Islander person dying in custody.[87] Following the RCIADIC, all states and territories have made reforms to their coronial system, though there is no uniform approach to suspicious deaths generally and death in police custody specifically.[88]
14.68 Importantly, coronial processes ensure there is independent judicial oversight of all deaths in custody and coroners have full judicial powers to summons and question witnesses.[89] Nevertheless, police retain an important role and generally have primary carriage of the initial fact finding investigation when there is a death in police custody.[90] For example, in Victoria it is the police who have responsibility for preparing a brief of evidence for the Coroner.[91]
14.69 As a result, there are ongoing concerns about police investigating police following a death in custody. The Office of Police Integrity in Victoria conducted a review of the investigative process following a death associated with police in Victoria and explained that:
Although some consider police to have the most relevant investigative expertise and a greater capacity to respond in a timely fashion, others question the independence and impartiality of police in conducting such investigations.
Some of those who contributed to this Review expressed concerns that Victoria Police has a conflict of interest in the outcome of the investigation. They say the police ‘search for the truth’ may conflict with their interest in protecting the reputation of Victoria Police and safeguarding legal or financial liability that may arise if a person is wronged by the actions of police. Concerns were also raised regarding a culture of loyalty and empathy within police services, in which members ‘look out for one another’[92]
14.70 The Human Rights Law Centre submitted that:
No Australian jurisdiction has established a system for completely independent investigations of deaths in police custody or of allegations of torture and mistreatment. Complaints against police officers are primarily investigated by other police officers. Queensland has implemented a model which more directly involves the State Coroner. However, this remains far from being a fully impartial investigation by a body independent to the police, in line with international standards.[93]
14.71 In terms of specific reforms, the Human Rights Law Centre submitted that:
Each state and territory should establish an independent body for investigating deaths in police custody and complaints against police. Such a body should be hierarchically, institutionally and practically independent of the police and have features to ensure that investigations are comprehensive, prompt, subject to public scrutiny and, in the case of deaths in custody, involve the family of the deceased.[94]
14.72 There are a range of international models that could be drawn upon to establish functional independence from the police for the conduct of investigating deaths in police custody. For example:
· Independent Police Conduct Authority in New Zealand;[95]
· Independent Police Complaints Commission in England and Wales;[96]
· Police Ombudsman for Northern Ireland;[97]
· Garda Síochána Ombudsman in the Republic of Ireland;[98] and
· Special Investigations Unit in Ontario, Canada.[99]
14.73 In New Zealand, the Independent Police Conduct Authority has statutory independence from police, is led by a District Court Judge and has a team of independent investigators who have a range of investigative powers similar to police.[100] Under the Independent Police Conduct Authority Act 1988 (NZ) the Authority will investigate, independently of police, an incident involving a death that may have been caused by a police officer in the execution of their duty where it is in the public interest for the authority to conduct the investigation.[101] This model avoids the conflict of police investigating police and potentially improves perceptions of police accountability.
14.74 In the Republic of Ireland, the Garda Síochána Ombudsman Commission (GSOC) is responsible for conducting investigations in circumstances where it appears that the conduct of a garda (police) may have resulted in the death of, or serious harm to, a person.[102] The GSOC was established by the Garda Síochána Act 2005 (Republic of Ireland) and ensures independent investigation.[103]
14.75 In Northern Ireland, the Office of the Police Ombudsman in Northern Ireland provides independent, impartial, civilian oversight of policing. The Ombudsman is a statutory body that is financially and institutionally independent of the police.[104] The Ombudsman is responsible for investigating deaths after police contact and deaths in custody. Officers of the Ombudsman can be appointed to investigate such deaths with the same powers as are available to the police.[105] The Office can recommend prosecution of a police officer to the Director of Public Prosecutions.[106]
14.76 In the province of Ontario, Canada, the Special Investigations Unit (SIU) is an independent civilian agency with the power to both investigate and charge police officers with a criminal offence.[107] The SIU was created by the Police Services Act 1990 (Ontario, Canada). The director of the SIU can investigate the circumstances of serious injuries and deaths that may have resulted from criminal offences committed by police officers. SIU investigators may be former police officers but may not investigate their former force.[108]
14.77 The ALRC suggests that these international models should be reviewed and considered as part of reforms to police complaints handling mechanism in Australia.
Recommendation 14–3 Commonwealth, state and territory governments should introduce a statutory requirement for police to contact an Aboriginal and Torres Strait Islander legal service, or equivalent service, as soon as possible after an Aboriginal and Torres Strait Islander person is detained in custody for any reason—including for protective reasons. A maximum period within which the notification must occur should be prescribed.
14.78 Custody Notification Services (CNS) are state or territory-wide 24-hour, 7-day a week telephone legal advice services available to Aboriginal and Torres Strait Islander people who have been detained in custody. CNS lawyers provide legal advice in a culturally sensitive manner, and are trained to detect and respond to issues such as threats of self-harm or suicide, or any injuries sustained during arrest.
14.79 All states and territories have arrangements in place to notify the relevant Aboriginal and Torres Strait Islander legal service (ATSILS) when an Aboriginal or Torres Strait Islander person is detained in police custody.[109]
14.80 The nature of these arrangements range from a limited obligation in the NT to take reasonable steps to obtain legal assistance if requested[110] with no concomitant duty to inform an individual of their right to legal counsel, to a requirement in Victoria for police to notify Victorian Aboriginal Legal Services (VALS) within 60 minutes of an Aboriginal person being detained in custody for any reason.[111] An obligation to notify is provided for in legislation or regulation in relation to Commonwealth offences and in the ACT and NSW.[112]
14.81 The RCIADIC recommended that: ‘in jurisdictions where legislation, standing orders or instructions do not already so provide, appropriate steps be taken to make it mandatory for Aboriginal Legal Services to be notified upon the arrest or detention of any Aboriginal person.’[113]
14.82 The RCIADIC recommendation seeks to improve compliance with police practices and procedures by permitting
Aboriginal people to receive legal advice delivered in a culturally sensitive manner at the earliest possible opportunity in order to prevent them from acquiescing to police demands in a manner which could jeopardise subsequent court proceedings.[114]
14.83 The recommendation also protects the welfare of Aboriginal and Torres Strait Islander people in custody by facilitating a welfare check.
14.84 Stakeholders emphasised that implementation of CNSs must be accompanied by adequate, ongoing funding. Legal Aid ACT, while broadly supportive, suggested that there ought to be an option to request a service other than an ATSILS at first instance, and that the obligation may be met by requiring contact with a non-legal service provider, who may then coordinate access to a lawyer.[115] The ALRC accepts that it is important for both reasons of choice and confidentiality that a detained person be given the opportunity to nominate that a service provider other than an ATSILS be contacted in the first instance. Recommendation 12–3 does not preclude this option. Obtaining the detained person’s consent prior to making contact can facilitate this choice and already occurs in some jurisdictions.
14.85 However, in light of the twofold goals of the custody notification scheme—welfare checking and preventing Aboriginal and Torres Strait Islander people in custody from acquiescing to police demands—the ALRC considers that it is preferable that the notification requirement be tied to contacting an ATSILS or equivalent service, including, for example Legal Aid.
14.86 A legislative requirement to notify an ATSILS when an Aboriginal and/or Torres Strait Islander person is detained in police custody reflects the importance of this safeguarding measure. It also ensures that the terms of the specific obligation are publicly available and discoverable, and less susceptible to change. By contrast, in some jurisdictions police manuals—which often contain the requirement to notify—are only available for purchase in disc format,[116] and may be changed more frequently reflecting their status as internal procedures and policies. Stakeholders expressed strong support for the ARLC’s recommendation.[117] NATSILS submitted, for example that
there is a clear need for notification requirements and procedures to be enshrined in legislation so as to create a system of notifications that is either mandatory in all instances, or at the very least consistent in application to prevent ad hoc compliance.[118]
14.87 Ms Tegan Kelly submitted that the RCIADIC recommendation was intended as an interim measure, and suggested that the ALRC consider making a recommendation along the lines of the RCIADIC’s recommendation 223 relating to the development of local accords and protocols. While noting the historical support for a mandatory duty to notify, and the role that ATSILS can play in ‘reduc[ing] the disadvantage faced by Aboriginal and Torres Strait Islander people in their interactions with police’, she argued that ‘it is worthwhile investigating further whether a local level protocol would be a better approach to establishing such a duty’.[119]
14.88 As discussed further below, the ALRC values and encourages the development of cooperative initiatives between police and Aboriginal and Torres Strait Islander communities that build goodwill and promote a constructive relationship. However, as submitted by NATSILS, incorporation of a statutory duty guards against ad hoc compliance. It may also, in some circumstances, act as a catalyst for the development of relationships and initiatives of this kind.
14.89 In the Discussion Paper, the ALRC proposed that the statutory requirement to notify should apply when an Aboriginal and/or Torres Strait Islander person is detained in custody. The Human Rights Law Centre and ALSWA urged the ALRC to clarify that the obligation arises irrespective of why the Aboriginal and/or Torres Strait Islander person is detained in police custody—that is, it should not be limited to detention in custody in relation to an offence.[120] They highlighted, for example, that a person may be detained for other reasons, such as in protective custody,[121] or in relation to outstanding warrants.[122]
14.90 The ALRC agrees with such an approach. The recommendation reflects the nature of this obligation. Policies, procedures and manuals in Victoria and Tasmania already explicitly require notification where there is detention ‘for any reason’,[123] or in every case where an ‘Aboriginal person is in custody’.[124]
14.91 Ensuring that police notify the relevant legal service as soon as possible after an Aboriginal and/or Torres Strait Islander person is detained in custody is crucial in safeguarding the person’s welfare and rights. The ALRC considers that states and territories should set a maximum time limit within which the notification must occur. While the ALRC does not make a specific recommendation about what the time limit should be, it notes that, in Victoria, police are required to notify VALS within 60 minutes of the person arriving at the police station.[125]
14.92 Legal Aid NSW raised concerns that attempts by the Commonwealth Government earlier this year to amend s 23H(1) of the Crimes Act 1914 (Cth) could ‘water down’ the notification requirement. [126] The proposed amendment would have had the effect of amending s 23H(1) to read ‘if the investigating official in charge of investigating a Commonwealth offence ... must, immediately before starting to question the person’ notify the relevant ATSILS. The explanatory memorandum to the Bill stated that the amendments sought to:
provide legislative certainty following the case of R v CK [2013] ACTSC 251 (R v CK). In that case, the court found that the wording of subsection 23H(1) did not require an investigating official to notify an Aboriginal legal assistance organisation prior to commencing questioning. This finding is contrary to the intention of subsection 23H(1), which is to implement safeguards for Aboriginals and Torres Strait Islanders arrested or taken into custody, giving effect to recommendation 224 of the report by the Royal Commission into Aboriginal Deaths in Custody (RCIADIC). This recommended that governments take steps (in jurisdictions where such arrangements were not already in place) to make it mandatory for an Aboriginal legal assistance organisation to be notified upon the arrest or detention of any Aboriginal or Torres Strait Islander. The amendments to section 23H clarify that an investigating official must notify an Aboriginal legal assistance organisation prior to commencing questioning of a suspect.
14.93 While it is unlikely that a court, faced with a provision in those terms enacted for the reasons set out above, would interpret the provision in a manner that waters down any notification obligation, the ALRC considers that the preferable policy approach would be to:
· impose a prohibition on police asking the detained person any questions other than to determine their Aboriginality or obtain their consent to the notification; and
· set a maximum time after the person’s arrest within which notification must occur.
Recommendation 14–4 In order to further enhance cultural change within police that will ensure police practices and procedures do not disproportionately contribute to the incarceration of Aboriginal and Torres Strait Islander peoples, the following initiatives should be considered:
· increasing Aboriginal and Torres Strait Islander employment within police;
· providing specific cultural awareness training for police being deployed to an area with a significant Aboriginal and Torres Strait Islander population;
· providing for lessons from successful cooperation between police and Aboriginal and Torres Strait Islander peoples to be recorded and shared;
· undertaking careful and timely succession planning for the replacement of key personnel with effective relationships with Aboriginal and Torres Strait Islander communities;
· improving public reporting on community engagement initiatives with Aboriginal and Torres Strait Islander peoples; and
· entering into Reconciliation Action Plans.
14.94 Police culture was identified by RCIADIC as contributing to the over-policing of Aboriginal and Torres Strait Islander people back in 1991.[127] Police have made reforms to their practice and procedures over the last 25 years and these have irrevocably changed the culture of police.[128]
14.95 However, as has been highlighted above, more needs to be done to embed a cultural change within police that will ensure police practices and procedures do not contribute to the disproportionate incarceration of Aboriginal and Torres Strait Islander peoples. The Human Rights Law Centre submitted that there was a ‘need for fundamental change in the way police interact with Aboriginal and Torres Strait Islander people and communities, including improved cultural awareness, with the aim of building trust, promoting safety and reducing crime.’[129]
14.96 Similarly Caxton Legal Centre explained that any ‘plan to reduce indigenous incarceration must [include] measurable actions designed to shift the behavioural norms of police officers to ensure discretion is exercised to divert Indigenous people from the criminal justice system.’[130] Such a plan needs ‘demonstrated “change agent” public leadership amongst the highest levels of Australia’s justice portfolios, law enforcement agencies and Aboriginal and Torres Strait Islander communities.’[131] Such a plan also needs to build on examples of success many of which have been provided to the ALRC throughout this Inquiry. This section highlights some of the examples of success and sets out a number of initiatives that could assist to progress cultural change within police.
14.97 A key recommendation of the RCIADIC was the employment of more Aboriginal and Torres Strait Islander police officers, especially women.[132] Progress has been made in implementing this recommendation.[133] Nevertheless, the Productivity Commission documented that: ‘The proportion of Aboriginal and Torres Strait Islander police staff in 2015-16 was below the representation of Aboriginal and Torres Strait Islander people in the population aged 20–64 years for all jurisdictions except NSW and the ACT.’[134]
14.98 ALSWA suggested that aiming for population parity is not enough: ‘Bearing in mind the overrepresentation of Aboriginal and Torres Strait Islander people in the criminal justice system and as victims, even 3.2% Aboriginal employment is insufficient.’[135]
14.99 The rate of participation of Aboriginal and Torres Strait Islander people in sworn or unsworn roles and in operations or non-operational roles at a national is not readily available. As an indication, the NSW Police 2016-2017 Annual Report explains that there is some evidence that Aboriginal and Torres Strait Islander employees ‘tend to be more concentrated at lower salary bands than is the case for other staff.’[136]
14.100 In addition, national statistics on the number of Aboriginal and Torres Strait Islander women employed by police is incomplete. A number of submissions highlighted the need for more Aboriginal and Torres Strait Islander policewomen in order to address family violence.[137] The Human Rights Law Centre also suggested that there ‘is also an urgent need for recruitment practices that promote Aboriginal and Torres Strait Islander women’s participation, both in policing and the training of police.’[138]
14.101 A key issue is how to improve recruitment practices to encourage greater numbers of applications from Aboriginal and Torres Strait Islander peoples. Reconciliation Australia has said that an Aboriginal and Torres Strait Islander employment strategy provides a ‘blueprint for developing, implementing and maintaining Indigenous employment actions’.[139] The Closing the Gap Clearinghouse suggested that key elements for increasing Aboriginal and Torres Strait Islander employment should include:
· Increasing the skill levels of Indigenous Australians via formal education and training.
· Pre-employment assessment and customised training for individuals in order to get Indigenous job seekers employment-ready.
· Non-standard recruitment strategies that give Indigenous people who would be screened out from conventional selection processes the opportunity to win jobs.
· The provision of cross-cultural training by employers.
· Multiple and complementary support mechanisms to improve the retention of Indigenous employees is crucial. These may include:
· ongoing mentoring and support;
· flexible work arrangements to allow Indigenous employees to meet their work, family and/or community obligations;
· provision of family support;
· dealing with racism in the workplace via initiatives such as the provision of cross-cultural training.[140]
14.102 The then NSW Police Commissioner, Andrew Scipione APM, suggested:
Increased Aboriginal employment within the NSW Police Force improves the participation of Aboriginal people across a range of policing issues and builds community relationships, cooperation and trust. Both our organisation and our Aboriginal communities benefit in a range of ways from a greater understanding by police of Aboriginal issues.[141]
14.103 Various police forces have undertaken training and employment initiatives as a means of bolstering Aboriginal and Torres Strait Islander police numbers. One such specialised training program was introduced by the NSW Police for Aboriginal and Torres Strait Islander persons wishing to join the police force. The Indigenous Police Recruitment Our Way Delivery program (developed by the NSW Police Force and TAFE NSW) aims to assist Aboriginal and Torres Strait Islander people in gaining skills, qualifications and confidence to successfully apply for a position within the NSW Police Force.[142]
14.104 Submissions highlighted the positive contribution of Aboriginal Community Police Officers (ACPOs) in the NT. ACPOs perform a range of duties including liaising with Aboriginal communities and contributing to effective Community Safety Action Plans.[143] The NSW/ACT ALS supplementary submission also noted that:
A number of participants applauded the role of Aboriginal Community Liaison Officers (ACLOs) in brokering ... connections [between police and the community], and suggested that ACLOs need to be stationed at all police stations as well as out of regular hours (i.e. after hours and on weekends).[144]
14.105 Similarly, in the Torres Strait, police have appointed non-sworn Aboriginal and Torres Strait Islander people as locally-based Torres Strait Island Police Support Officers (known as TSIPSOs) who support police and act as liaisons between police and the community.[145]
14.106 The Aboriginal Legal Service of Western Australia highlighted the Aboriginal Cadet Program which was ‘created to encourage more young indigenous people to become police officers’.[146] The two year program is ‘designed to prepare cadets to undertake the police recruit selection process.’[147] The 2016–17 WA Police Annual Report records that a total of 25 Aboriginal cadets had been recruited and
[t]he program is expected to increase the number and success of Aboriginal applicants for police officer positions within the agency. Additionally, it will build momentum towards achieving greater representation of Aboriginal people in the WA Police workforce; to better reflect the communities the agency works with as well as promoting a more diverse workforce mix.[148]
14.107 In 1991, the RCIADIC recommended:
That police training courses be reviewed to ensure that a substantial component of training both for recruits and as in-service training relates to interaction between police and Aboriginal people. It is important that police training provide practical advice as to the conduct which is appropriate for such interactions. Furthermore, such training should incorporate information as to:
a. The social and historical factors which have contributed to the disadvantaged position in society of many Aboriginal people;
b. The social and historical factors which explain the nature of contemporary Aboriginal and non-Aboriginal relations in society today; and
c. The history of Aboriginal police relations and the role of police as enforcement agents of previous policies of expropriation, protection, and assimilation.[149]
14.108 There was broad support throughout this Inquiry for greater training of police to improve cultural understanding as a basis for improving relationships between police and Aboriginal and Torres Strait Islander peoples and communities. For example the NSW/ACT ALS supplementary submission noted that:
Many participants stated that there is a lack of respect between the police and Aboriginal and Torres Strait Islander people in their community. Some participants suggested that this lack of respect was primarily due to a general lack of understanding and awareness of cultural differences among the police.[150]
14.109 Submissions also noted that cultural awareness training is available to police and typically forms a compulsory part of training to become a police officer. For example the NT Government advised:
Cultural understanding and training feature in the NT Police recruit course curriculum along with mandatory cultural awareness training for all members. Local engagement and training with identified Traditional Owners or Elders also improves understanding and cross cultural awareness.[151]
14.110 During the Inquiry, the ALRC heard about an unpreparedness of police entering into often remote and sometimes challenging Aboriginal communities. Women’s Legal Services Australia submitted that: ‘Every police officer should be responsible for understanding the issues facing the local Aboriginal and Torres Strait Islander communities and for building a relationship of trust and accountability with them.’[152]
14.111 Similarly, the NSW/ACT ALS supplementary submission explained that:
Participants suggested two strategies to ensure police better understand and respond to Aboriginal communities – cultural awareness training and community engagement. Participants suggested that training should include information specific to the community in which police are working, such as language training and descriptions of different cultural groups. They also suggested that it is important for police to demonstrate to the community that this training is being or has been conducted, through promotion and advertising. [153]
14.112 A 2010 independent review of policing in remote Aboriginal communities in the NT suggested:
[I]nitiatives should include ensuring that members who are selected for remote postings are provided with appropriate and adequate hand over/takeover time on arrival at the community, introductions to community elders and leaders, cultural training by community members including understanding of significant ceremonies and ceremonial locations, mentoring by other staff with proven prior experience in the location, appropriate employment conditions, appropriate supervision and management support, and recognition of their completed, satisfactory service at remote locations in future postings.[154]
14.113 In 2011, the Victorian Office of Police Integrity found that, while Victoria Police had a strong commitment to addressing issues within Aboriginal communities, ‘more needs to be done to build a better understanding of Koori culture and local Koori issues to ensure police who are working with Koori communities can provide a culturally appropriate response to their needs’.[155] As a result the Office recommended that ‘Aboriginal and Torres Strait Islander cultural training is desirable for all police but should be a prerequisite for all police prior to deployment to Policing Service Areas where there is a significant Koori population’.[156]
14.114 In its submission, Legal Aid WA emphasised the importance of cultural awareness training for police officers and staff, especially training that is delivered by Elders in the community and is specific to the local area.[157]
14.115 That view was supported by the Human Rights Law Centre:
Police in each state and territory should have guidance materials and undertake regular compulsory training, facilitated by Aboriginal and Torres Strait Islander people... Such training should be mandatory, ongoing and location specific and involve an assessment of learning.[158]
14.116 These submissions suggest that more and better targeted training for police is required to improve understand of local Aboriginal and Torres Strait Islander communities. The ALSWA stressed the importance of reporting on training as an accountability measure:
Western Australia Police should be required to report on an annual basis the proportion of police officers who have undertaken cultural competency training; the nature, location and duration of that training; and how many officers have undertaken subsequent training.[159]
14.117 During this Inquiry, the ALRC was informed about, and observed, some very positive initiatives undertaken by, or involving, police and local Aboriginal and Torres Strait Islander people. This suggests that cooperative community initiatives at a local level can result in significant improvements. There are many initiatives which illustrate the success of such programs. The following programs are a small sample to illustrate what can be achieved.
14.118 For example, a number of cooperative initiatives between police and the local community have been introduced in the Sydney suburb of Redfern. In 2009, Redfern Police, led by the Local Area Commander, Aboriginal community leaders in Redfern and Tribal Warrior Aboriginal Corporation, instigated the ‘Clean Slate Without Prejudice’ program. In 2016, the ‘Never Going Back’ program was implemented in Redfern by Redfern Police, Aboriginal community leaders in Redfern and Tribal Warrior with the additional assistance of Long Bay Correctional Complex General Manager.
14.119 Tribal Warrior provided this description of those programs:
Clean Slate Without Prejudice program … consists of a boxing and fitness program at the National Indigenous Centre of Excellence gymnasium in Redfern. It also involves the active participation of community leaders and police officers from the Redfern Local Area Command. The Never Going Back program targets Aboriginal inmates who are nearing the completion of their custodial sentences. They are collected from Long Bay Correctional Centre three times a week at to attend boxing with Clean Slate Without Prejudice and receive training for employment.[160]
14.120 Both programs received Australian Crime and Violence Prevention awards in 2016, a recognition of good practice in the prevention or reduction of violence and other types of crime in Australia.[161]
14.121 A 2016 review of the programs by Professor Karl Roberts found the programs were making a positive contribution, noting the following effects:
· reductions in reported crime in the area, particularly robbery and burglary;
· increased community confidence in police; and
· enhanced resilience of communities and ‘at risk’ groups.[162]
14.122 Professor Roberts suggested that the principles underlying the success of the programs were:
1. The success of the Redfern programs is underpinned by a procedurally just approach towards the community. This is characterised by treating community members with respect, giving them a clear voice that is listened to by police in police-community interactions, giving community members explanations for police activity and decisions, and utilizing reliable and fair approaches towards community members. This underpins the development of trust.
2. Enhancing trust between police and community has been central to the improvement in police-community relations and cooperation with police.
3. Police familiarity with some of the mechanisms of social influence is likely to be useful in identifying leaders, community collaborators and designing programs that will have the greatest influence upon changing attitudes and behaviour within communities.[163]
14.123 The Marunguka Justice Reinvestment project in the New South Wales town of Bourke has involved collaboration between the local Aboriginal community and police to address community-identified problems. In consultation with Marunguka, in 2016 the Bourke Local Area Command implemented a program of visits to the homes of perpetrators of domestic violence following an incident of violence. Police were accompanied on the visits by a member of the community, so that the visits served a dual purpose—both supervisory and supportive.[164]
14.124 Another example from Bourke, NSW is the recently introduced ‘breach reduction strategy’, which relies on positive police involvement. The strategy includes making sure a warning is issued for technical breaches of bail, and that police contact the community (via a local community hub) when they believe that an Aboriginal and Torres Strait Islander person may not comply and may be in need of support services.[165] PIAC supported expansion of this approach to communities with large populations of Aboriginal and Torres Strait Islander peoples.[166]
14.125 In Cairns and on Thursday Island, the ALRC observed the effectiveness of the involvement of Aboriginal and Torres Strait Islander court officers and the substantial, voluntary participation of community Elders in the criminal court process. The ALRC also noted the advantages derived from the long term appointment to the Torres Strait of an experienced and culturally aware magistrate along with a police inspector and prosecutor with a thorough understanding of the local Torres Strait Island communities.
14.126 During the Inquiry, a number of stakeholders noted that information about initiatives and programs, like those outlined above, is not always easy to find. For example, performance measures to be implemented by the NSW Police set out in their Aboriginal Strategic Direction 2012–2017 provide for internal reporting only, and do not require public reporting.[167]
14.127 In the Discussion Paper, the ALRC sought views of whether annual reporting may:
· allow for members within a particular police force to be made aware of all programs operating within a state or territory;
· encourage better engagement and understanding of programs within Aboriginal communities;
· assist those undertaking research to easily identify police programs and strategies;
· reveal where police are not engaging with a particular Aboriginal or Torres Strait Islander community that has high rates of offending behaviours and recidivism; and
· encourage best practice.
14.128 The NSW Bar Association responded:
... all State, Territory and Federal police forces should be required to report to their relevant Minister on the character, quantity and coverage of programs and courses/seminars on Indigenous cultural and social issues as recommended by the Royal Commission into Aboriginal Deaths in Custody in recommendations 225 and 228 of its final report.[168]
14.129 Submissions supported documenting police programs and public reporting.[169] For example, the National Aboriginal & Torres Strait Islander Legal Services supported public reporting for the following reasons:
In order to collect data and ensure that the programs implemented are as effective as possible, it is essential that police document and evaluate these programs ... Reporting is essential for transparency and accountability. There are number of benefits:
(a) keeping communities and local organisations informed of police initiatives;
(b) ensuring that communities and organisations understand what measures are being taken by police to address local problems; and
(c) facilitating better collaboration between police and community organisations (such as the numerous ATSILS) on such programs.[170]
14.130 A key consideration is how public reporting should be implemented. The ALRC’s focus in the Discussion Paper was reporting in an annual report. However, annual reports are prepared in accordance with legislation. For example, the NSW Police Annual Report is prepared in accordance with the Annual Reports (Departments) Act 1985 and the Annual Reports (Departments) Regulation 2015 and is primarily intended to provide an account of operational expenditures to the government and parliament.[171] This ensures accountability for the public expenditure of funds. Given that state and territory police are annually spending billions of dollars for states with large populations and hundreds of millions of dollars for states with small populations,[172] there is usually little information on activity at the level of the local police station or local area command in an annual report.[173] Instead, information is highly aggregated and considers the implementation of broad strategic directions rather than cataloguing individual initiatives. Often a single individual initiative is highlighted in an annual report as an example of the type of work police are undertaking across community. For instance, the 2016–17 Victoria Police Annual Report explained: ‘More than 20 police joined over 70 Aboriginal participants from the Dungulay in Mileka program in the Massive Murray Paddle during November 2016. The event started in Yarrawonga and finished in Swan Hill over a course of 404 km.’[174]
14.131 Another challenge for reporting on initiatives through an annual report consistently across jurisdictions is that, in the NT and Tasmania, the police do not prepare standalone annual reports but contribute one part of a broader multi-agency report.[175]
14.132 The 2012–2013 Annual Report on ACT Policing provided an example of what is possible in terms of including information on programs and initiatives developed or implemented by police to build engagement with Aboriginal and Torres Strait Islander communities and support at risk youth.[176] The Annual Report includes a dedicated section to Aboriginal and Torres Strait Islander peoples with information required to be reported under the ACT Aboriginal Justice Agreement. The current (2016–17) Annual Report is much shorter and excludes this information.[177]
14.133 ALSWA noted that: ‘The Western Australia Police website refers to the Aboriginal and Community Diversity Unit but provides no details about what programs and initiatives are actually undertaken; instead it is a mere statement of intention.’[178]
14.134 The ALRC suggests that police websites provide an outline of their work with Aboriginal and Torres Strait Islander peoples and communities. The websites should include details and evaluations of their community engagement strategies, protocols, procedures and programs designed to prevent or reduce offending behaviour and possible incarceration. The website should also contain year by year statistical data for the purpose of comparison and public assessment. Equally important is ensuring that police formally report regularly to the local community about police engagement with Aboriginal and Torres Strait Islander peoples including details of all programs and activities.
14.135 During consultations for this Inquiry, succession planning was raised as an issue for the continuation of successful, innovative programs when a key police officer moves to another posting or retires.
14.136 The ALRC was made aware, for example, that the Tackling Violence program, which had been conducted by the NSW police for several years, ceased for a period upon the retirement of the police officer who had driven the program.[179]
14.137 The program was described in the NSW Police Force Aboriginal Strategic Direction 2012–2017 as using:
… men and boys’ love of rugby league to encourage them to be leaders and role models in the campaign against domestic violence in their communities. Tackling Violence is a mainstream program that is led by Aboriginal people to change attitudes about domestic violence. Participating teams work in partnership with Police Domestic Violence Region Coordinators, Domestic Violence Liaison Officers, Aboriginal Community Liaison Officers, Aboriginal Coordination Team and Local Area Commands.[180]
14.138 The ALRC acknowledges that succession planning for key roles can be challenging. For example, succession planning was a major feature of the Victorian Auditor-General’s 2006 report, Planning for a Capable Victoria Police Workforce.[181] In 2011 the Office of Police Integrity identified limited succession planning as an ongoing issue and recommended that a framework for succession planning be implemented.[182]
14.139 Nevertheless the continuation of successful and innovative community engagement programs relies on careful and timely succession planning. Efforts to more broadly embed such programs within the core work of local area commands should be pursued to ensure that such programs are not wholly reliant on individual police officers.
14.140 In 2016, 767 Australian organisations had developed a Reconciliation Action Plan. A Reconciliation Action Plan is a type of strategic plan which provides a set of actions that a particular organisation will undertake to achieve reconciliation with Aboriginal and Torres Strait Islander peoples. Plans are designed and implemented with input from Reconciliation Australia, the national expert body on reconciliation.[183]
14.141 Reconciliation Australia has outlined the contribution that Plans can make to reconciliation:
The Reconciliation Action Plan program contributes to achieving reconciliation by developing relationships, respect and opportunities with Aboriginal and Torres Strait Islander peoples. RAPs help workplaces to facilitate understanding, promote meaningful engagement, increase equality and develop sustainable employment and business opportunities.[184]
14.142 Reconciliation Action Plans contain a list of key objectives (or ‘actions’) and assign the task of delivering those objectives to individuals with time lines for delivery. Organisations that have adopted a Plan must report annually to Reconciliation Australia as to the achievement and outcome of their objectives.
14.143 The ALRC understands that only SA Police, Victoria Police and the AFP have Reconciliation Action Plans.
14.144 Kimberley Community Legal Services Inc proposed:
... the WA Police should be encouraged to enter RAPs. The process of developing and promoting RAPs can have educational, attitudinal and operational effects. On an organisational level, a formal recognition of the historic inequity in services provided to Aboriginal people has the potential to shift perception and make a concrete difference to responses and outcomes for Indigenous people.[185]
14.145 The 2017–2020 South Australian Police Plan lists 15 actions that include ‘Create opportunities to support Aboriginal and Torres Strait Islander staff and increase employment pathways and outcomes within our workplace’.
14.146 The 2016 RAP Impact Measurement Report highlights the success of the implementation of Reconciliation Action Plans across Australia:
· 6,658 partnerships currently existing between RAP organisations and Aboriginal and Torres Strait Islander communities
· 19,413 Aboriginal and Torres Strait Islander people were working or studying in organisations with a current RAP
· 51,797 employees completed online cultural learning, 46,446 employees completed face-to-face cultural awareness training and 3,043 employees completed cultural immersion experience.[186]
14.147 The National Aboriginal & Torres Strait Islander Legal Services submitted:
[Reconciliation Action Plans], among other great benefits, improve the perception of Aboriginal and Torres Strait Islander peoples, increase pride in Aboriginal and Torres Strait Islander cultures and increase the number of social interactions organisations have with Aboriginal and Torres Strait Islander peoples. A RAP will only improve police relationships with Aboriginal and Torres Strait Islander peoples.[187]
14.148 The Law Council of Australia was also supportive:
The Law Council further submits that RAPs will have a significant impact on the services provided by the police force when engaging with Indigenous communities, promote cultural awareness and respect for Indigenous communities and Aboriginal people, and encourage and promote employment opportunities for Aboriginal people who may wish to join the police force.[188]
[1] See, eg, Victoria Police, Victoria Police Blue Paper: A Vision for Victoria Police in 2025 (2014) 10; Attorney-General’s Department (Cth), National Youth Policing Model (2010). All Australian police ministers agreed to the National Youth Policing Model in July 2010.
[2] Victoria Police, above n 1, 10.
[3] See, eg, Victoria Police Act 2013 (Vic); Police Service Administration Act 1990 (Qld); Police Act 1990 (NSW).
[4] ACT Government and Australian Federal Police, An Ongoing Arrangement between the Minister for Justice of the Commonwealth and the ACT Minister for Police and Emergency Services for the Provision of Policing Services to the ACT: Commencing June 2017 (2017); ACT Government and Australian Federal Police, Agreement between the ACT Minister for Police and Emergency Services, Australian Federal Police Commissioner, and the Chief Police Officer for the ACT for the Provision of Policing Services to the Australian Capital Territory 2017–2021 (2017).
[5] Productivity Commission, ‘Report on Government Services 2017’ (Volume C: Justice, Produced for the Steering Committee for the Review of Government Service Provision, 2017) 6.1.
[6] Victoria Police, above n 1, 9.
[7] See, eg, Ibid 10; Colin Prof Rogers, ‘Maintaining Democratic Policing: The Challenge for Police Leaders’ (2014) 2(2) Australian Institute of Police Management 1.
[8] Productivity Commission, above n 5, 6.15-6.16.
[9] See, eg, Daphne Habibis et al, Telling It like It Is: Aboriginal Perspectives on Race and Race Relations: Early Findings (2016) 8; Reconciliation Australia, State of Reconciliation in Australia: Summary (2016) 7. See, also, Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 5 recs 60–1, 79–91, 214–33; Human Rights Law Centre and Change the Record Coalition, Over-Represented and Overlooked: The Crisis of Aboriginal and Torres Strait Islander Women’s Growing Over-Imprisonment (2017) 22; Victorian Equal Opportunity and Human Rights Commission, Unfinished Business: Koori Women and the Justice System (2013) 42; Senate Standing Committees on Finance and Public Administration, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (2016) 70, 80; Senate Select Committee on Regional and Remote Indigenous Communities, Parliament of Australia, Indigenous Australians, Incarceration and the Criminal Justice System—Discussion Paper (2010) 36; Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice and Native Title Report 2016 (Australian Human Rights Commission, 2016) 40–2; Inquest into the Death of Ms Dhu (11020–14) (Unreported, WACorC, 16 December 2016).
[10] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) Vol 2 [13.2.2]–[13.2.19].
[11] Commonwealth, Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory, Findings and Recommendations (2017) recs 25.1–25.22.
[12] Public Interest Advocacy Centre, Submission No 17 to Senate Finance and Public Administration References Committee, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (30 April 2015).
[13] Chief Justice Wayne Martin, ‘Indigenous Incarceration Rates: Strategies for Much Needed Reform’ (Speech, Law Summer School, 2015).
[14] Human Rights Law Centre and Change the Record Coalition, above n 9, 32.
[15] Victorian Equal Opportunity and Human Rights Commission, Unfinished Business: Koori Women and the Justice System (2013) 43.
[16] NSW Police Force, Aboriginal Strategic Direction 2007–2011 (2007) 46.
[17] See, eg, Redfern Legal Centre, Submission 79; Caxton Legal Centre, Submission 47; Human Rights Law Centre and Change the Record Coalition, above n 9; Aboriginal Legal Service of Western Australia, Submission 74; National Aboriginal and Torres Strait Islander Legal Services, Submission 109; North Australian Aboriginal Justice Agency, Submission 113.
[18] Richard Wortley, ‘Measuring Police Attitudes toward Discretion’ (2003) 30(5) Criminal Justice and Behavior 538, 540.
[19] Ibid.
[20] Jonathon Hunyor, ‘Imprisonment: Paperless Arrests and the Rise of Executive Power in the Northern Territory’ (2015) 8(21) Indigenous Law Bulletin 3, 7.But see Vicki Sentas and Rebecca McMahon, ‘Changes to Police Powers of Arrest in New South Wales’ (2013) 25 Current Issues Crim. Just. 785.
[21] Crime Statistics Agency Victoria, Indigenous Alleged Offender Incidents—Year Ending June 2017 (2017) table 6.
[22] Lucy Snowball and Australian Institute of Criminology, ‘Diversion of Indigenous Juvenile Offenders’ (Trends & Issues in Crime and Criminal Justice No 355, Australian Institute of Criminology, 2008). The effect was reduced but still statistically significant after controlling for variables.
[23] Crime and Misconduct Commission, Policing Public Order—A Review of the Public Nuisance Offence (2008) 92.
[24] Clare Ringland and Nadine Smith, ‘Police Use of Court Alternatives for Young Persons in NSW’ (Contemporary Issues in Crime and Justice No 167, NSW Bureau of Crime Statistics and Research, January 2013) 10.
[25] Office of Police Integrity Victoria, Talking Together—Relations between Police and Aboriginal and Torres Strait Islanders in Victoria: A Review of the Victoria Police Aboriginal Strategic Plan 2003–2008 (2011) 20.
[26] Redfern Legal Centre, Submission 79.
[27] Legal Aid NSW, Submission 101.
[28] Aboriginal Legal Service (NSW/ACT) Supplementary Submission, Submission 112.
[29] Redfern Legal Centre, Submission 79.
[30] Ibid.
[31] Caxton Legal Centre, Submission 47.
[32] NSW Ombudsman, Improving the Management of Complaints: Police Complaints and Repeat Offenders (Special Report to Parliament under s 31 of the Ombudsman Act 1974, September 2002).
[33] Ibid.
[34] Redfern Legal Centre, Submission No 30 to Senate Standing Committee on Finance and Public Administration, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (23 April 2015).
[35] See Vicki Sentas and Camilla Pandolfini, ‘Policing Young People in NSW: A Study of the Suspect Targeting Management Plan’ (Youth Justice Coalition, 2017). See also Redfern Legal Centre, Submission No 30 to Senate Standing Committee on Finance and Public Administration, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (23 April 2015).
[36] Redfern Legal Centre, Submission 79.
[37] DPP v Cooke [2007] NSWCA 2 (7 February 2007) [23].
[38] Public Interest Advocacy Centre, Submission No 17 to Senate Finance and Public Administration References Committee, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (30 April 2015).
[39] Don Weatherburn and Jacqueline Fitzgerald, ‘The Impact of the NSW Bail Act (2013) on Trends in Bail and Remand in New South Wales’ [2015] Crime and Justice Statistics: Bureau Brief, Issue 106 1.
[40] Australian Law Reform Commission and NSW Law Reform Commission, Family Violence—A National Legal Response, ALRC Report No 114, NSWLRC Report No 128 (2010) [26.58].
[41] Office of the Director of Public Prosecutions New South Wales, Prosecution Guidelines (2007); Director of Public Prosecutions for the State of Victoria, Policy of the Director of Public Prosecutions for Victoria.
[42] This is also known as ‘charge and fact bargaining’ whereby the number and level of charges may be reduced in return for the defendant entering a guilty plea to some or all charges. Such bargaining may also involve the prosecution agreeing to present a recommendation for sentence, including on the basis of an agreed summary of facts. See Australian Law Reform Commission and NSW Law Reform Commission, Family Violence—A National Legal Response, ALRC Report No 114, NSWLRC Report No 128 (2010) [26.58].
[43] NSW Law Reform Commission, Encouraging Appropriate Early Guilty Pleas, Report 141 (2014) 58.
[44] Clare Ringland and Lucy Snowball, ‘Predictors of Guilty Pleas in the NSW District Court’ (Number 96, NSW Bureau of Crime Statistics and Research, 2014) 1.
[45] Commonwealth, Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory, Findings and Recommendations (2017) 249.
[46] Commonwealth, Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory, Report (2017) 248.
[47] Ibid 247.
[48] See chs 1 and 2.
[49] Police Complaints and Discipline Act 2016 (SA), Independent Commissioner Against Corruption Act 2012 (SA), Law Enforcement Conduct Commission Act 2016 (NSW).
[50] See Independent Broad-based Anti-corruption Commission Committee, Inquiry into the external oversight of police corruption and misconduct in Victoria, (6 September 2017) Parliament of Victoria <https://www.parliament.vic.gov.au/ibacc/inquiries/article/3799>.
[51] Victorian Aboriginal Legal Service, Submission No 46 to Independent Broadbased Anti-Corruption Commission Committee, Parliament of Victoria, Inquiry into the External Oversight of Police Corruption and Misconduct in Victoria (15 September 2017) 7
[52] Australian Law Reform Commission, Integrity: But Not by Trust Alone: AFP & NCA Complaints and Disciplinary Systems, ALRC Report No 82, (1996) [2.2].
[53] Ibid [2.4].
[54] Ibid [2.12].
[55] Tim Prenzler and Louise Porter, ‘Improving Police Behaviour and Police-Community Relations through Innovative Responses to Complaints’ in Stuart Lister and Michael Rowe (eds), Accountability of Policing (Routledge, 2015) 49.
[56] Independent Broad-Based Anti-Corruption Commission (Vic), Audit of Victoria Police Complaints Handling Systems at Regional Level (2016) 7.
[57] Police Accountability Project, Independent Investigation of Complaints against the Police: Policy Briefing Paper (2017) 4–5.
[58] Australian Law Reform Commission, Integrity: But Not by Trust Alone: AFP & NCA Complaints and Disciplinary Systems, ALRC Report No 82, (1996) [2.32].
[59] Australian Federal Police Act 1979 (Cth) pt V; Ombudsman Act 1976 (Cth); Law Enforcement Integrity Commission 2006 (Cth) ss5-7.
[60] Police Act 1990 (NSW) pt 8A; Law Enforcement Conduct Commission Act 2016 (NSW). In addition to this the NSW Ombudsman has powers under the Ombudsman Act 1974 (NSW) pt 3A and 3C in relation to abuse of children and persons with a disability that cover police.
[61] Police Administration Act (NT) pt II div 6; Ombudsman Act (NT) pt 7.
[62] Police Service Administration Act 1990 (Qld) Pt 7; Crime and Corruption Act 2001 (Qld).
[63] Police Complaints and Discipline Act 2016 (SA); Independent Commissioner Against Corruption Act 2012 (SA).
[64] Police Service Act 2003 (Tas) pt 3; Ombudsman Act 1978 (Tas); Integrity Commission Act 2009 (Tas).
[65] Victoria Police Act 2013 (Vic) pt 9 div 2; Independent Broad-Based Anti-Corruption Commission Act 2011 (Vic).
[66] Police Act 1892 (WA) s 23; Corruption, Crime and Misconduct Act 2003 (WA).
[67] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) Vol 2.
[68] Amnesty International and Clayton Utz, Review of the Implementation of RCIADIC - May 2015 (2015) 162–184.
[69] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) Vol 4 ch 28.5.
[70] Ibid.
[71] Redfern Legal Centre, Submission 79.
[72] Aboriginal Legal Service of Western Australia, Submission 74.
[73] Sisters Inside, Submission 119; North Australian Aboriginal Justice Agency, Submission 113; Aboriginal Peak Organisations (NT), Submission 117; National Aboriginal and Torres Strait Islander Legal Services, Submission 109; Community Legal Centres NSW and the Community Legal Centres NSW Aboriginal Advisory Group, Submission 95; Aboriginal Legal Service of Western Australia, Submission 74; Redfern Legal Centre, Submission 79; Human Rights Law Centre, Submission 68; Caxton Legal Centre, Submission 47; Kingsford Legal Centre, Submission 19.
[74] Independent Commissioner Against Corruption South Australia, Review of Legislative Schemes: The Oversight and Management of Complaints about Police (2015) 24.
[75] Tamar Hopkins, An Effective System for Investigating Complaints Against Police: A Study of Human Rights Compliance in Police Complaint Models in the US, Canada, UK, Northern Ireland and Australia (Victorian Law Foundation, 2009) 23, 34–5.
[76] National Aboriginal and Torres Strait Islander Legal Services, Submission 109.
[77] Aboriginal Peak Organisations (NT), Submission 117.
[78] Kingsford Legal Centre, Submission 19.
[79] Ombudsman Act (NT) ss 78, 80, 86.
[80] North Australian Aboriginal Justice Agency, Submission 113.
[81] Ibid.
[82] Human Rights Law Centre, Submission 68.
[83] Productivity Commission, above n 5, 6.13.
[84] Productivity Commission, above n 5. Deaths in custody represent a relatively small proportion of those who die as a result of contact with police. Deaths while attempting to detain have been the most common category associated with police custody and custody-related operations deaths since 1989–90, accounting for 73 percent of deaths. See Ashleigh Baker and Tracy Cussen, ‘Deaths in Custody in Australia: National Deaths in Custody Program 2011–12 and 2012–13’ (Monitoring Report No 26, Australian Institute of Criminology, 2015).
[85] Baker and Cussen, above n 84.
[86] Office of Police Integrity, Review of the Investigative Process Following a Death Associated with Police Contact (2011) 8.
[87] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) Vol 2.
[88] Amnesty International and Clayton Utz, above n 68, 25.
[89] Chief Justice Wayne Martin, ‘The Coronial Jurisdiction: Lessons for Living’ (Speech, 2016 Asia Pacific Coroners Society Conference, Perth, 9 November 2016) 9.
[90] Coroners Court of Victoria, The Coroners Process (2013) 22. In Queensland, the Crime and Corruption Commission is informed of all police-related deaths and may attend an incident if there is concern about the public interest. See Crime and Corruption Commission Queensland, Annual Report 2014-15 (2015) 23.
[91] Coroners Court of Victoria, above n 90, 22.
[92] Office of Police Integrity, above n 86, 13.
[93] Human Rights Law Centre, Submission 68.
[94] Ibid.
[95] Independent Police Conduct Authority Act 1988 (NZ).
[96] Police Reform Act 2002 (UK) c 30.
[97] Police (Northern Ireland) Act 1998 (UK) c32.
[98] Garda Síochána Act 2005 (Republic of Ireland).
[99] Police Services Act 1990 (Ontario, Canada).
[100] Independent Police Conduct Authority, Annual Report 2015–2016 (2016) 7.
[101] Ibid.
[102] Garda Síochána Act 2005 (Republic of Ireland).
[103] Ibid.
[104] Police Ombudsman for Northern Ireland, Annual Report and Accounts for the year ended 31 March 2017 (2017).
[105] Ibid.
[106] Ibid.
[107] Special Investigations Unit, Annual Report 2016-2017 (2017).
[108] Ibid.
[109] Crimes Act 1900 (ACT) s 187; Crimes Act 1914 (Cth) s 23H; Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) cl 37; Police General Order Q1 (NT) [4.7]; Police General Order 3015 (SA) [13]; Victoria Police Manual VPM Instruction 113–1—Taking a Person into Custody (Vic) [4.7]; Police Manual (WA) Policy AD4.1. In Queensland, there is a limited statutory duty to the arrangements are pursuant to a Memorandum of Understanding between the Queensland Police Service and Aboriginal Legal Services (Qld): Aboriginal and Torres Strait Islander Legal Service (Qld), Safe Custody—Working Together to Ensure Safe Custody and Create Safer Communities <www.police.qld.gov.au>. In Tasmania, the commitment to notify is set out in: Department of Police and Emergency Management (Tas), Aboriginal Strategic Plan 2104–2022 (2014) 5.
[110] Police General Order Q1 (NT) [4.7]. The Northern Territory Government submission noted that ‘NT police practice mandates that notification is provided to the respective Aboriginal Legal Service upon the detention of an Aboriginal person’: Northern Territory Government, Submission 118.
[111] Victoria Police Manual VPM Instruction 113–1—Taking a Person into Custody (Vic) [4.3].
[112] Crimes Act 1900 (ACT) s 187; Crimes Act 1914 (Cth) s 23H; Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) cl 37.
[113] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 4, rec 224.
[114] Aboriginal and Torres Strait Islander Legal Services, Custody Notification Service: An Analysis of the Operation of This Service by Each Aboriginal and Torres Strait Islander Legal Service (2017) 1.
[115] Legal Aid ACT, Submission 107.
[116] Victoria Police, Policies, Procedures and Legislation <www.police.vic.gov.au>.
[117] See, eg, North Australian Aboriginal Justice Agency, Submission 113; NSW Bar Association, Submission 88; Human Rights Law Centre, Submission 68; Northern Territory Anti-Discrimination Commission, Submission 67; International Commission of Jurists Victoria, Submission 54; Victorian Aboriginal Legal Service, Submission 39. See, eg, Sisters Inside, Submission 119; North Australian Aboriginal Justice Agency, Submission 113; Law Society of Western Australia, Submission 111; National Aboriginal and Torres Strait Islander Legal Services, Submission 109; Human Rights Law Centre, Submission 68; International Commission of Jurists Victoria, Submission 54; Australian Human Rights Commission, Submission 43; Legal Aid WA, Submission 33; Kingsford Legal Centre, Submission 19.
[118] National Aboriginal and Torres Strait Islander Legal Services, Submission 109.
[119] T Kelly, Submission 116.
[120] Aboriginal Legal Service of Western Australia, Submission 74; Human Rights Law Centre, Submission 68.
[121] See, eg, Aboriginal Legal Service of Western Australia, Submission 74; Human Rights Law Centre, Submission 68.
[122] Aboriginal Legal Service of Western Australia, Submission 74.
[123] Victoria Police Manual VPM Instruction 113–1—Taking a Person into Custody (Vic) [4.3].
[124] Department of Police and Emergency Management (Tas), above n 109, 5.
[125] Victoria Police Manual VPM Instruction 113–1—Taking a Person into Custody (Vic) [4.3].
[126] Legal Aid NSW, Submission 101.
[127] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) Vol 4 [29.5].
[128] Amnesty International and Clayton Utz, above n 68, 183.
[129] Human Rights Law Centre, Submission 68.
[130] Caxton Legal Centre, Submission 47.
[131] Ibid.
[132] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 4, rec 229.
[133] Amnesty International and Clayton Utz, above n 68, 500–504.
[134] Productivity Commission, above n 5, 6.8.
[135] Aboriginal Legal Service of Western Australia, Submission 74.
[136] NSW Police Force, Annual Report 2016–17 (2017) 86.
[137] Aboriginal Legal Service of Western Australia, Submission 74; Human Rights Law Centre, Submission 68.
[138] Human Rights Law Centre, Submission 68.
[139] GenerationOne & Reconciliation Australia Everybody’s Business: A Handbook for Indigenous Employment (2013) 6.
[140] Matthew Gray, Boyd Hunter and Shaun Lohoar, ‘Increasing Indigenous Employment Rates’ (Bureau Brief Issue Paper 3, Closing the Gap Clearinghouse, 2012) 1–2.
[141] NSW Police Force, Aboriginal Employment Strategy 2015–2019 (2015).
[142] NSW Police Force, Aboriginal Recruitment <www.police.nsw.gov.au/recruitment/the_career/atsi>.
[143] Northern Territory Police, Fire & Emergency Services, 2015–16 Annual Report (2016) 28.
[144] Aboriginal Legal Service (NSW/ACT) Supplementary Submission, Submission 112.
[145] Queensland Police, Queensland Police Welcome New Torres Strait Island Police Support Officers (TSIPSO) <www.mypolice.qld.gov.au/farnorth/2013/10/28>.
[146] Aboriginal Legal Service of Western Australia, Submission 74.
[147] Western Australia Police, Annual Report 2017 (2017).
[148] Ibid.
[149] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) rec 228.
[150] Aboriginal Legal Service (NSW/ACT) Supplementary Submission, Submission 112.
[151] Northern Territory Government, Submission 118.
[152] Women’s Legal Service NSW, Submission 83.
[153] Aboriginal Legal Service (NSW/ACT) Supplementary Submission, Submission 112.
[154] The Allen Consulting Group, Independent Review of Policing in Remote Indigenous Communities in the Northern Territory: Policing Further into Remote Communities (2010) 78.
[155] Office of Police Integrity Victoria, Talking Together—Relations between Police and Aboriginal and Torres Strait Islanders in Victoria: A Review of the Victoria Police Aboriginal Strategic Plan 2003–2008 (2011) 14.
[156] Ibid.
[157] Legal Aid WA, Submission 33.
[158] Human Rights Law Centre, Submission 68.
[159] Aboriginal Legal Service of Western Australia, Submission 74.
[160] Tribal Warrior, Gold Award for Tribal Warrior Mentoring Programs <www.tribalwarrior.org>.
[161] Australian Institute of Criminology, ‘Two NSW Police Projects Recognised for Reducing Crime in the Redfern Area’ (Media Release, 23 November 2016).
[162] Karl Roberts, Review of Two Community Engagement Programs in Redfern Local Area Command New South Wales Police (2016) 4–5.
[163] Ibid 5–6.
[164] Just Reinvest NSW, Submission 82. See ch 4.
[165] Sarah Hopkins and Eleanor Holden, ‘Justice Reinvestment and Over-Policing: A Conversation with Sarah Hopkins’ (2016) 25 Human Rights Defender 22, 23. Justice reinvestment is discussed in ch 4.
[166] Public Interest Advocacy Centre, Submission 25.
[167] NSW Police Force, Aboriginal Strategic Direction 2012–2017 (2015) 16.
[168] NSW Bar Association, Submission 88.
[169] Commissioner for Children and Young People Western Australia, Submission 16; Victorian Aboriginal Legal Service, Submission 39; Aboriginal Legal Service of Western Australia, Submission 74; Kimberley Community Legal Services, Submission 80.
[170] National Aboriginal and Torres Strait Islander Legal Services, Submission 109.
[171] NSW Police Force, above n 136.
[172] Productivity Commission, above n 5, Table 6A.10.
[173] South Australia Police, Annual Report 2016–17 (2017); Western Australia Police, above n 147; Northern Territory Police, Fire and Emergency Services, 2016–17 Annual Report (2017); NSW Police Force, above n 136; Queensland Police Service, Annual Report 2016–17 (2017); Victoria Police, Annual Report 2016–17 (2017); Australian Federal Police, ACT Policing Annual Report 2016-17 (2017); Tasmania Department of Police, Fire and Emergency Management, 2016–17 Annual Report (2017).
[174] Victoria Police, above n 173.
[175] Northern Territory Police, Fire and Emergency Services, above n 173; Tasmania Department of Police, Fire and Emergency Management, above n 173.
[176] Australian Federal Police, ACT Policing Annual Report 2012-13 (2013) 137.
[177] Australian Federal Police, above n 173.
[178] Aboriginal Legal Service of Western Australia, Submission 74.
[179] The ALRC understands the program has now recommenced.
[180] NSW Police Force, Aboriginal Strategic Direction 2012–2017 (2015) 18.
[181] Auditor-General of Victoria, Planning for a Capable Victoria Police Workforce (2006) [7.3.4].
[182] Office of Police Integrity (Vic), Enabling a Flexible Workforce for Policing in Victoria (2011) 8.
[183] Reconciliation Australia, About Us <https://www.reconciliation.org.au/about/>.
[184] Reconciliation Australia, 2016 RAP Impact Measurement Report (2017) 2.
[185] Kimberley Community Legal Services, Submission 80.
[186] Reconciliation Australia, 2016 RAP Impact Measurement Report (2017) 6, 8, 10.
[187] National Aboriginal and Torres Strait Islander Legal Services, Submission 109.
[188] Law Council of Australia, Submission 108.